Ajlani v. Chertoff

07-1170-cv
Ajlani v. Chertoff

UNITED STATES COURT OF APPEALS

F OR THE S ECOND C IRCUIT

August Term, 2007

(Argued: August 6, 2008 Decided: October 7, 2008)

Docket No. 07-1170-cv

M AJED A JLANI,

Plaintiff-Appellant,
—v.—

M ICHAEL C HERTOFF, Secretary of Homeland Security,
J ONATHAN R. S CHARFEN, Acting Director of USCIS,
M ICHAEL B. M UKASEY, Attorney General of the United States,
R OBERT S. M UELLER III, Director of Federal Bureau of Investigation,
A NDREA J. Q UARANTILLO, District Director of the NY USCIS Office,1

Defendants-Appellees.

B e f o r e:
R AGGI, W ESLEY, and L IVINGSTON,
Circuit Judges.

1
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Michael
B. Mukasey is automatically substituted for former Attorney General Alberto R. Gonzales;
Acting Director of United States Citizenship and Immigration Services (“USCIS”) Jonathan
R. Scharfen is automatically substituted for former Director of USCIS Emilio T. Gonzalez;
and District Director of the New York USCIS Office Andrea J. Quarantillo is substituted for
former District Director Mary Anne Gantner.

1
 ___________________

Appeal from a judgment of the United States District Court for the Eastern District

of New York (Brian M. Cogan, Judge) dismissing plaintiff’s action pursuant to 8 U.S.C.

§ 1447(b) for declaratory and injunctive relief to effect his naturalization as a United States

citizen and to prohibit his removal from this country. The district court correctly concluded

that it lacked jurisdiction to review the propriety of pending removal proceedings and that

the pendency of such proceedings precluded plaintiff from stating a present claim for

naturalization relief.

A FFIRMED.

S COTT B RATTON, Margaret Wong & Associates Co., LPA, Cleveland, Ohio,
for Plaintiff-Appellant.

S COTT D UNN, Assistant United States Attorney (Varuni Nelson, Assistant
United States Attorney, of counsel), for Benton J. Campbell, United States
Attorney for the Eastern District of New York, Brooklyn, New York, for
Defendants-Appellees.

R EENA R AGGI, Circuit Judge:

Plaintiff Majed Ajlani appeals from a judgment of dismissal entered on February 12,

2007, in the United States District Court for the Eastern District of New York (Brian M.

Cogan, Judge). Pursuant to 8 U.S.C. § 1447(b), Ajlani, a Syrian national, sued for

declaratory and injunctive relief to compel his naturalization as a United States citizen and

2
to prohibit his removal from this country. The district court concluded that it lacked

jurisdiction to review the propriety of removal proceedings then pending against Ajlani and

that the pendency of such proceedings precluded plaintiff from stating a present claim for

naturalization relief. Our court has not previously considered whether a district court may

afford an alien naturalization relief pursuant to 8 U.S.C. § 1447(b) when pending removal

proceedings preclude the Attorney General from considering his naturalization application.

See 8 U.S.C. § 1429.2 We now answer that question in the negative and, accordingly, affirm

the judgment of dismissal.

I. Background

A. Ajlani’s Acquisition of Permanent Resident Status

Majed Ajlani entered the United States as a tourist on August 9, 1987. Overstaying

his visa, Ajlani accumulated four convictions over the course of the next thirteen years: in

New York, for (1) forgery in 1989, (2) making a false incident report in 1995, and

(3) trespass in 2000; and in Kentucky, for (4) credit card fraud in 1989. Nevertheless, on July

2
In 2002, Congress transferred authority (1) to commence removal proceedings and
(2) to adjudicate applications for naturalization from the Attorney General to the Secretary
of the Department of Homeland Security. See Homeland Security Act of 2002, Pub. L. No.
107-296, §§ 402(3), 441(2), 451(b)(2), 116 Stat. 2135, 2178, 2192, 2196 (codified at 6
U.S.C. §§ 202(3), 251(2), 271(b)(2)). Because this opinion discusses relevant naturalization
and removal law both before and after 2002, our references throughout this opinion to the
authority of the “Attorney General” in the areas of naturalization and removal should be
understood to extend to his statutory successor as well as to those immigration agencies to
which these officials have delegated some of this authority.

3
16, 1996, Ajlani secured lawful permanent resident status based on his marriage to a United

States citizen, a marriage that would subsequently end in divorce.

B. Ajlani’s Unsuccessful Efforts to Acquire United States Citizenship

In April 2004, Ajlani filed for United States citizenship, submitting to the requisite

initial examination on August 9, 2005.3 See 8 C.F.R. § 335.2(a); see also 8 U.S.C. § 1446(b).

On March 27, 2006, his application was granted.

Before Ajlani publicly took the oath of allegiance necessary to become a United States

citizen, see id. § 1448, he departed this country and attempted to re-enter through Canada on

September 22, 2006. This event apparently prompted border officials to take a closer look

at Ajlani’s immigration status. Based on his record of prior convictions, United States

Citizenship and Immigration Services (“USCIS”) served Ajlani with a written notice

directing him to appear for removal proceedings in Manhattan on October 10, 2006.4 When

Ajlani appeared before an immigration judge on October 10, 2006, to address possible

3
In his initial petition to the district court, Ajlani stated that his examination took
place on August 26, 2005. In a subsequent affidavit and in his opposition to the motion to
dismiss below, however, he reported that his examination took place on August 9, 2005. For
the purposes of our analysis this discrepancy is immaterial. We adopt the August 9 date here.
4
The September 22, 2006 notice referenced Ajlani’s forgery and credit card fraud
convictions and advised him that he was subject to removal (1) as an alien who had
committed crimes involving moral turpitude and (2) as an immigrant who, at the time of
application for admission to the United States, was not in possession of a valid entry
document or document of identity and nationality. See 8 U.S.C. § 1182(a)(2)(A)(i)(I),
(a)(7)(A)(i)(I).

4
removal, the proceedings were terminated because the government had not filed “the

appropriate documents with the Immigration Court to initiate [Ajlani’s] hearing.” Notice of

Immigration Ct., Oct. 10, 2006; see 8 C.F.R. §§ 1003.14(a), 1239.1(a). That same day, in

what the district court aptly described as an apparent “instance of one department failing to

communicate with another,” other immigration authorities sent Ajlani a notice to appear at

a naturalization oath ceremony on October 18, 2006. Ajlani v. Chertoff, No. 06 Civ. 5872,

order at 2 (E.D.N.Y. Feb. 8, 2007).

On October 17, 2006, the New York District Director of USCIS issued a “Motion to

Reopen” Ajlani’s naturalization proceedings pursuant to 8 C.F.R. § 335.5 (providing for

reopening based on receipt of “derogatory information concerning an applicant whose

application has already been granted . . . but who has not yet taken the oath of allegiance”).

Thus, when Ajlani appeared at the next day’s naturalization ceremony at the federal

courthouse in Brooklyn, he was not allowed publicly to take the oath of citizenship. Instead,

he was served with the Motion to Reopen, which stated, inter alia, that “the Service proposes

to reconsider the decision to grant your Application for Naturalization” and that, “[o]nce the

review on your case has been completed, your case will be rescheduled for the Naturalization

Ceremony.” Motion to Reopen, Oct. 17, 2006.

On December 20, 2006, the government formally commenced removal proceedings

against Ajlani by filing a notice to appear with the immigration court. See 8 C.F.R.

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§ 1003.14(a) (“Jurisdiction vests, and proceedings before an Immigration Judge commence,

when a charging document is filed with the Immigration Court by the Service.”); id.

§ 1239.1(a) (providing that “[e]very removal proceeding conducted under section 240 of the

[Immigration and Nationality Act of 1952 (INA), Pub. L. No. 82-414, § 240, 66 Stat. 163,

204 (codified as amended at 8 U.S.C. § 1229a)] to determine the deportability or

inadmissibility of an alien is commenced by the filing of a notice to appear with the

immigration court”). A few days later, on December 26, 2006, the immigration court issued

a written notice to Ajlani directing him to appear for a master removal hearing on January

23, 2007. At oral argument the parties confirmed that, as a result of a series of adjournments

largely attributable to agency docket backlogs, the question of Ajlani’s removal remains

pending.

C. Proceedings in the District Court

On October 30, 2006, approximately two weeks after Ajlani was excluded from the

naturalization oath ceremony and notified of the government’s intent to reopen his

naturalization application, he commenced this federal action. Ajlani’s pro se complaint

requested declaratory relief pronouncing defendants’ actions in not admitting him to

citizenship unlawful on various grounds. He further requested either (a) a writ of mandamus

compelling the District Director of USCIS to administer the oath of citizenship, or (b) a

judicial administration of that oath. On December 18, 2006, Ajlani also requested that the

district court enjoin defendants from removing him from the United States.

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 Defendants filed an answer to the complaint on December 29, 2006, denying the

allegations and asserting that “[p]etitioner is not entitled to naturalization so long as removal

proceedings are pending against him.” Answer at 2. On January 10, 2007, defendants

responded to plaintiff’s motion for injunctive relief, arguing (1) that no such relief was

available because the court lacked jurisdiction to hear any cause or claim arising from the

Attorney General’s decision to commence removal proceedings, and (2) that the pending

removal proceedings “serve[] as a basis for dismissing petitioner’s petition in its entirety.”

Letter from Scott Dunn, Assistant U.S. Att’y, to Hon. Brian M. Cogan, U.S. Dist. Judge, at

2-3 (Jan. 10, 2007). In a footnote, the government argued that “even if the Court were to

conclude that it had jurisdiction over petitioner’s naturalization application and even if the

Court then concluded that it had authority to grant that application despite 8 U.S.C. [§] 1429,

the Court would still have to deny the application” on the merits. Id. at 3 n.2. The district

court construed defendants’ letter as a motion to dismiss and set a briefing schedule.

In opposing dismissal, Ajlani, still proceeding pro se, expanded the relief sued for in

his original complaint to include a judicial declaration that the removal proceedings pending

against him were “unconstitutional, discriminatory, without merit[,] and violat[ive of] due

process.” Ajlani Opp’n to Motion to Dismiss at 4.

On February 8, 2007, the district court granted defendants’ motion for dismissal,

ruling that (1) to the extent Ajlani challenged defendants’ commencement of removal

proceedings, the court lacked jurisdiction to review that decision; and (2) to the extent Ajlani

7
sought a judicial order compelling or granting his naturalization, he “failed to state a claim

upon which relief may be granted” in light of the pending removal proceedings. Ajlani v.

Chertoff, No. 06 Civ. 5872, order at 2-3.

Ajlani timely appealed the judgment of dismissal.

II. Discussion

A. Standard of Review

We review a judgment of dismissal de novo, whether the judgment is based on a lack

of subject matter jurisdiction or the failure to state a claim on which relief can be granted.

See Patane v. Clark, 508 F.3d 106, 111 (2d Cir. 2007) (failure to state claim); Duamutef v.

INS, 386 F.3d 172, 178 (2d Cir. 2004) (subject matter jurisdiction).

B. Ajlani’s Challenge to Removal

Ajlani submits that, to the extent the dismissal of his complaint was based on the

pendency of removal proceedings against him, the district court erred in several respects.

First, the court should have declared that, even before removal proceedings commenced,

Ajlani acquired United States citizenship by virtue of either his completion of the

naturalization process on October 18, 2006, or his acquisition of United States nationality

because of his demonstrated permanent allegiance to the United States. Second, the court

failed to recognize that removal proceedings against Ajlani in fact closed on October 10,

2006 — before he filed his October 30, 2006 complaint in this case — when the government

appeared in immigration court unprepared to file the documents necessary to pursue removal.

8
Third, the court erred in failing to consider Ajlani’s claim that the pending removal

proceedings against him violated his right to be free from discriminatory and selective

enforcement.

1. Ajlani Did Not Complete the Naturalization Process nor Does He
Qualify as a United States National

Ajlani claims that he was effectively naturalized on October 18, 2006, because his

application for naturalization had been granted; he attended the oath ceremony required by

8 U.S.C. § 1448; he recited the oath of allegiance, albeit “to himself”; and he signed a voter

registration card on that same date identifying himself as a United States citizen. Ajlani

Opp’n to Motion to Dismiss at 3. We are not convinced.

The grant of an application for naturalization is not determinative of citizenship. An

alien who has not taken the oath in a public ceremony remains a non-citizen. See 8 U.S.C.

§ 1448 (providing that, “before being admitted to citizenship,” an alien must “take in a public

ceremony . . . an oath” of allegiance). The statute’s implementing regulations similarly

identify the taking of a public oath as a prerequisite for naturalization, see 8 C.F.R. § 337.1

(“[A]n applicant for naturalization shall, before being admitted to citizenship, take in a public

ceremony . . . the following oath of allegiance . . . .”), and specifically provide that, when

USCIS receives “derogatory information concerning an applicant whose application has

already been granted . . . , but who has not yet taken the oath of allegiance . . . , the Service

shall remove the applicant’s name from any list of granted applications or of applicants

scheduled for administration of the oath of allegiance.” 8 C.F.R. § 335.5 (emphasis added).

9
Thus, Ajlani, who was excluded from the October 18, 2006 naturalization ceremony pursuant

to 8 C.F.R. § 335.5, could not acquire United States citizenship simply by reciting the oath

of allegiance to himself or by identifying himself as a United States citizen on a voter

registration document. Like the district court, we conclude that there is no such thing as

“self-naturalization.”

Ajlani’s alternative argument that he acquired United States nationality pursuant to

8 U.S.C. § 1101(a)(22)(B) based on demonstrated permanent allegiance to the United States

necessarily fails because Ajlani does not fit into any of the discrete classes of persons “who

are ‘nationals, but not citizens, of the United States at birth.’” Marquez-Almanzar v. INS,

418 F.3d 210, 217 (2d Cir. 2005) (quoting 8 U.S.C. § 1408). As we explained in Marquez-

Almanzar v. INS, “[8 U.S.C.] § 1101(a)(22)(B) itself does not provide a means by which an

individual can become a U.S. national.” Id. at 212.

2. Although No Removal Proceedings Were Pending Against Ajlani at the
Time He Filed His Initial Complaint, the District Court Correctly
Concluded that It Lacked Jurisdiction to Review His Subsequent Prayer
for Relief from Removal

Ajlani is correct that no removal proceedings were pending against him at the time he

filed his federal complaint. Removal proceedings against him did not commence until

December 20, 2006, when the government filed a notice to appear with the immigration

court. See 8 C.F.R. §§ 1003.14(a), 1239.1(a). That sequence of events does not, however,

assist Ajlani in challenging the district court’s judgment of dismissal.

10
 In opposing defendants’ motion to dismiss, Ajlani expanded the prayer for relief stated

in his original complaint to request a declaration that the then-pending removal proceedings

against him were unconstitutional and discriminatory. Consistent with its obligation to

construe pro se filings liberally, the district court reasonably treated Ajlani’s relief request

as a proposed amendment to the original complaint. Accordingly, the district court properly

considered whether such a claim could survive the motion to dismiss, and it correctly

concluded that it could not for lack of jurisdiction.

The immigration code plainly states that “no court shall have jurisdiction to hear any

cause or claim by or on behalf of any alien arising from the decision or action by the Attorney

General to commence proceedings, adjudicate cases, or execute removal orders against any

alien under [relevant provisions of the INA].” 8 U.S.C. § 1252(g). While the statute creates

an exception for “constitutional claims or questions of law,” see id. § 1252(a)(2)(D),

jurisdiction to review such claims is vested exclusively in the courts of appeals and can be

exercised only after the alien has exhausted administrative remedies, see id. § 1252(a)(2)(D),

(a)(5), (b)(4), (d). Accordingly, the district court lacked jurisdiction to review Ajlani’s

constitutional challenges to his removal proceedings, and it would be premature for this court

to do so now.

C. Ajlani’s Claim for Naturalization Relief

Ajlani asserts that the district court erred in holding that the pendency of removal

proceedings precluded it from adjudicating his claim for naturalization relief under 8 U.S.C.

11
§ 1447(b). To explain why, on de novo review, we reach the same conclusion as the district

court, it is necessary briefly to review the development of relevant provisions of the law

applicable to naturalization and removal before discussing their application to this case. See

Bellajaro v. Schiltgen, 378 F.3d 1042, 1045 (9th Cir. 2004) (observing that dispute regarding

courts’ authority to grant naturalization relief to aliens against whom removal proceedings

are pending “exists in large part because of changes that were made to the naturalization

process in 1952 and 1990”).

1. Naturalization and Removal Law

Before 1990, naturalization authority and removal authority were vested in different

branches of government, with naturalization being the province of the courts and removal the

province of the executive acting through the Attorney General. See Saba-Bakare v. Chertoff,

507 F.3d 337, 341 (5th Cir. 2007); Bellajaro v. Schiltgen, 378 F.3d at 1045; Zayed v. United

States, 368 F.3d 902, 905 (6th Cir. 2004); see also INA § 310(a), 66 Stat. at 239;

Naturalization Act of 1906, Pub. L. No. 59-338, §§ 3, 11, 34 Stat. 596, 596, 599.5 In the

absence of law giving priority to one authority over the other, it was possible for

naturalization and removal proceedings to advance simultaneously, sometimes giving rise

5
The Attorney General nevertheless played a role in the court’s exercise of primary
naturalization authority because immigration authorities acting under his direction conducted
the preliminary investigation and examination of applicants and made recommendations to
the district court. See INA § 335, 66 Stat. at 255-56. Upon review, the district court could
adopt the recommendation, modify it, or itself hold a hearing on the naturalization
application. See id. §§ 335(d), 336, 66 Stat. at 256-58; Etape v. Chertoff, 497 F.3d 379, 385
(4th Cir. 2007) (discussing background to enactment of § 1447(b)).

12
to what the Supreme Court described as a race “between the alien to gain citizenship and the

Attorney General to deport him.” Shomberg v. United States, 348 U.S. 540, 544 (1955); see

also id. at 543-44 (recognizing that first process to conclude effectively precluded the other

from occurring).

Section 27 of the Internal Security Act of 1950 put an end to such races, providing that

No person shall be naturalized against whom there is
outstanding a final finding of deportability, and no petition for
naturalization shall be finally heard by a naturalization court if
there is pending against the petitioner a deportation proceeding
pursuant to a warrant of arrest issued under the provisions of
this or any other Act . . . .

Internal Security Act of 1950, Pub. L. No. 81-831, § 27, 64 Stat. 987, 1015, reenacted

without significant change by INA § 318, 66 Stat. at 244 (codified as amended at 8 U.S.C.

§ 1429). Thus, from 1950 to 1990, federal law clearly forbade district courts from ruling on

naturalization applications while removal proceedings were pending against the alien

applicant.

In the Immigration Act of 1990, Congress unified naturalization and removal authority

in the executive by conferring “sole authority to naturalize persons as citizens of the United

States” on the “Attorney General.” Immigration Act of 1990, Pub. L. No. 101-649, § 401(a),

104 Stat. 4978, 5038 (codified at 8 U.S.C. § 1421(a)); see Etape v. Chertoff, 497 F.3d at 386

(explaining Congress’s intent to streamline naturalization process and to avoid backlog

naturalization proceedings created on district courts’ dockets); Kai Tung Chan v. Gantner,

13
464 F.3d 289, 290 (2d Cir. 2006) (same). In accordance with this change, Congress amended

the INA’s priority provision, 8 U.S.C. § 1429, “by striking ‘finally heard by a naturalization

court’ and inserting ‘considered by the Attorney General.’” Immigration Act of 1990

§ 407(d)(3), 104 Stat. at 5041. As a result, the priority provision of the INA now reads

(subject to various provisos not applicable in this case) as follows:

[N]o person shall be naturalized against whom there is
outstanding a final finding of deportability pursuant to a warrant
of arrest issued under the provisions of this chapter or any other
Act; and no application for naturalization shall be considered by
the Attorney General if there is pending against the applicant a
removal proceeding pursuant to a warrant of arrest issued under
the provisions of this chapter or any other Act . . . .

8 U.S.C. § 1429.

At the same time that the 1990 Act refocused the priority provision to limit the

Attorney General’s newly conferred naturalization authority, the law reserved a measure of

naturalization jurisdiction for the courts in two circumstances: denial and delay. Thus, if the

Attorney General denies a naturalization application, the alien can seek de novo review of

the denial in the district court. See id. §§ 1421(c), 1447(a). Similarly, if “there is a failure

to make a determination” on the application within 120 days after the applicant’s required

examination, the alien can ask the district court to “determine the matter or remand the

matter, with appropriate instructions, to [immigration authorities] to determine the matter.”

Id. § 1447(b).

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 2. Ajlani Cannot Secure Judicial Naturalization Pursuant to § 1447(b)
While Removal Proceedings Are Pending Against Him

a. Jurisdiction

To invoke the district court’s naturalization jurisdiction pursuant to 8 U.S.C.

§ 1447(b), an alien must demonstrate the Attorney General’s “failure” to decide the

plaintiff’s naturalization application “before the end of the 120-day period” following the

applicant’s eligibility examination. Assuming that Ajlani satisfies this requirement,6 the

government’s actions in this case raise two additional questions, left unanswered by the

statute, that possibly affect jurisdiction under § 1447(b). First, does the reopening of a

naturalization proceeding pursuant to 8 C.F.R. § 335.5 afford the Attorney General a new

120-day period of exclusive jurisdiction to determine naturalization, or does reopening only

restart the 120-day clock at whatever time it stopped when the Attorney General initially

6
To decide whether the 120-day time period had expired in this case, we would
necessarily have to determine when it began. This, in turn, would require us to consider
whether the term “examination” in 8 U.S.C. § 1446(b), as referenced by § 1447(b), means
the initial USCIS interview date, see, e.g., Al-Farisi v. Mueller, 492 F. Supp. 2d 335, 337
(S.D.N.Y. 2007), or the entire process by which USCIS gathers information on an applicant,
see, e.g., id. at 337 n.1; Danilov v. Aguirre, 441 F. Supp. 2d 441, 443-44 (E.D. Va. 2005).
The lower courts in this Circuit have clearly coalesced around the former interpretation. See,
e.g., Al-Farisi v. Mueller, 492 F. Supp. 2d at 337; Mostovoi v. Sec’y of the Dep’t of
Homeland Sec., No. 06 Civ. 6388, 2007 WL 1610209, at *3 (S.D.N.Y. June 4, 2007);
Alhamedi v. Gonzales, No. 07 Civ. 2541, 2007 WL 1573935, at *3 (S.D.N.Y. May 30,
2007)). This court has yet to comment on the issue, however, and since we assume without
deciding that § 1447(b) jurisdiction arises in this case, see infra text accompanying note [7],
we do not reach the question in the present appeal.

15
granted the naturalization application? Second, do pending removal proceedings affect §

1447(b) jurisdiction?

Because defendants raise no challenge to the exercise of § 1447(b) jurisdiction in this

case, we need not answer these questions on this appeal.7 Rather, like the district court, we

assume the existence of § 1447(b) jurisdiction, mindful that the concerns we identify

implicate statutory rather than constitutional jurisdiction. See Abimbola v. Ashcroft, 378

7
We note that, as to the first question, if reopening only restarts the clock, no
jurisdictional concern arises in this case because the 120-day period referenced in § 1447(b)
had concluded some three months before the Attorney General granted Ajlani naturalization
on March 27, 2006. On the other hand, if reopening resets the clock for a new 120-day
period — a conclusion not obvious from the statute’s exclusive identification of the
eligibility examination date as the starting point — it might be argued that Ajlani’s October
30, 2006 complaint could not demonstrate a decisional failure of more than 120 days from
the October 17, 2006 reopening of his naturalization proceeding.
As to the second question, while the pendency of removal proceedings at the time a
complaint is filed might preclude the exercise of § 1447(b) jurisdiction, cf. Saba-Bakare v.
Chertoff, 507 F.3d at 340 (leaving unanswered the question of § 1447(b) jurisdiction under
such circumstances by ruling that § 1429 would render the exercise of § 1447(b) jurisdiction
“futile” in any case), because removal proceedings against Ajlani did not commence until
December 20, 2006, see supra at [5, 10], some weeks after the filing of his October 30, 2006
complaint, it is not clear that the initiation of those proceedings would divest the court of
jurisdiction. Cf. Zayed v. United States, 368 F.3d at 906 (deciding, in case involving
removal proceedings brought after petition for review under § 1421(c) was filed, that “effect
of [removal proceedings under] § 1429 . . . is to limit the scope of the court’s review and
circumscribe the availability of effective remedies, but not to oust the district court of a
jurisdiction expressly conferred on it by [§ 1421(c)]”).
In identifying these issues, we do not predict how they might be resolved by this court
in an appropriate case. For reasons explained infra at [19-24], on this appeal, we conclude
that, even if § 1447(b) jurisdiction was properly invoked, once removal proceedings were
initiated, the district court could not grant plaintiff naturalization relief while those
proceedings remained pending. See Saba-Bakare v. Chertoff, 507 F.3d at 340; Bellajaro v.
Schiltgen, 378 F.3d at 1046-47 (holding that, even if pending removal proceedings against
plaintiff did not deprive district court of jurisdiction to review naturalization application,
court could not grant naturalization while proceedings pending); Zayed v. United States, 368
F.3d at 906 (same).

16
F.3d 173, 180 (2d Cir. 2004) (assuming hypothetical jurisdiction); Fama v. Comm’r of Corr.

Servs., 235 F.3d 804, 816 n.11 (2d Cir. 2000) (same).

We proceed to explain why we conclude that the district court, nevertheless, correctly

determined that Ajlani did not state a claim for naturalization relief while removal

proceedings were pending and, thus, properly dismissed the complaint.

b. The District Court Could Not Direct Defendants to Admit Ajlani
to Citizenship While Removal Proceedings Were Pending
Against Him

Focusing first on that part of Ajlani’s prayer for relief that seeks to compel defendants

to admit him to United States citizenship, we conclude that 8 U.S.C. § 1429 does not permit

an alien to state a claim for such relief under § 1447(b) while removal proceedings are

pending against him. The previously quoted text of § 1429 clearly prohibits the Attorney

General from making a final determination on naturalization while a removal proceeding is

pending against the applicant. Like our sister circuits that have addressed the issue, we

conclude that an alien cannot claim a form of relief pursuant to § 1447(b) that is forbidden

by § 1429.

As the Sixth Circuit explained in Zayed v. United States, although § 1429 does not

deprive a district court of its appointed jurisdiction in naturalization matters, it does “limit

the scope of the court’s review” and “circumscribe the availability of effective remedies,”

368 F.3d at 906. Once removal proceedings are commenced against an alien — and in

Zayed, as in this case, removal proceedings were initiated after plaintiff filed for judicial

relief, see id. at 904 — the district court cannot compel the Attorney General “to grant [the

17
alien’s] application for naturalization,” because “the statutory bar of § 1429” cannot be

overcome by “judicial fiat.” Id. at 906 & n.5.

The Fifth Circuit similarly construed the limiting effect of § 1429 on a judicial

naturalization proceeding in Saba-Bakare v. Chertoff, 507 F.3d 337. Construing § 1447(b)

to authorize a district court to grant relief for “the administrative delay of an application that

the Attorney General may consider,” the Fifth Circuit observed that § 1429 did not permit

the Attorney General to consider the naturalization application of an alien against whom

removal proceedings were pending. Id. at 340 (emphasis in original). In short, “the

administrative delay” complained of by Saba-Bakare was “required by § 1429.” Id. In these

circumstances, the Fifth Circuit concluded that it was “futile” for an alien to sue for §

1447(b) relief when removal proceedings were pending against him because, even if the

district court remanded the matter for immigration authorities to decide the alien’s

naturalization application, Ҥ 1429 requires that [the alien] wait until the termination of the

removal proceeding” for that determination. Id.

We here adopt the reasoning of these two courts and conclude that, to the extent

Ajlani sued for an order compelling defendants to admit him to citizenship, the district court

could not grant such relief. Section 1447(b) authorizes a district court to “remand” a delayed

naturalization application “with appropriate instructions, to the Service to determine the

matter” (emphasis added). While removal proceedings were pending against Ajlani, the

district court could not, consistent with § 1429, appropriately instruct defendants to admit

Ajlani to citizenship in advance of the completion of those removal proceedings.

18
 c. The District Court Could Not Itself Admit Ajlani to Citizenship
While Removal Proceedings Were Pending Against Him

By its terms, § 1429 limits only the authority of “the Attorney General” to act on

applications for naturalization when removal proceedings are pending against an alien. The

statute says nothing about the authority of district courts acting pursuant to § 1421(c) or

§ 1447(b). Thus, we consider whether the district court could itself have admitted Ajlani to

citizenship while removal proceedings were pending against him. Three of our sister circuits

have considered the question and concluded that the priority afforded removal proceedings

by § 1429 limits the courts’ authority to grant naturalization pursuant to § 1421(c) or

§ 1447(b). See Saba-Bakare v. Chertoff, 507 F.3d at 340 (discussing § 1447(b)); Bellajaro

v. Schiltgen, 378 F.3d at 1046-45 (discussing § 1421(c)); Zayed v. United States, 368 F.3d

at 905-06 (discussing § 1421(c)). We now join them in reaching the same conclusion.

In Zayed, in which the plaintiff sued under § 1421(c) to challenge a denial of

naturalization, the Sixth Circuit observed that the scope of a district court’s review authority

under § 1421(c) “cannot be any greater than the authority of the Attorney General to consider

the petition in the first place.” 368 F.3d at 906, quoting Apokarina v. Ashcroft, 232 F. Supp.

2d 414, 416 (E.D. Pa. 2002), remanded, 93 Fed. Appx. 469 (3d Cir. 2004). The Sixth Circuit

applied the same reasoning to remedial authority, concluding that a district court’s authority

to grant naturalization under § 1421(c) could not be greater than that of the Attorney General,

to whom Congress had granted “‘sole authority to naturalize persons’” in the first instance.

Id. (quoting 8 U.S.C. § 1421(a)). Thus, if § 1429 would preclude the Attorney General from

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granting naturalization to an alien because of pending removal proceedings, an alien could

not secure that relief from a district court pursuant to § 1421(c). See id.

Citing approvingly to Zayed, the Ninth Circuit reached a similar conclusion in

Bellajaro v. Schiltgen, 378 F.3d 1042. In that case, plaintiff sued for a judicial order of

naturalization under § 1421(c) after the Immigration and Naturalization Service (the

predecessor of USCIS) had denied his application on the ground that § 1429 precluded any

consideration of his naturalization application in light of pending removal proceedings. See

id. at 1043. The Ninth Circuit ruled that federal jurisdiction existed “to review the denial but

the scope of review is limited to ‘such’ denial.” Id. at 1047. Describing the agency ruling

about its inability to consider plaintiff’s naturalization application as “unquestionably

correct,” id. at 1043, the Ninth Circuit concluded that the district court could not proceed to

review the naturalization application itself, much less grant naturalization or even declare the

applicant eligible for naturalization but for the pending removal proceedings, see id. at 1046-

47 (observing that latter declaration would be “purely advisory”). The court explained that

this narrow construction of the judicial relief available to an alien pending removal

“rationalizes the judicial review provision of § 1421(c) with the priority provision of § 1429.”

Id. at 1047.

In Saba-Bakare, where the plaintiff invoked § 1447(b) jurisdiction to complain of

naturalization delay rather than denial, the Fifth Circuit took a similarly narrow view of a

district court’s ability to grant naturalization relief to an alien against whom removal

proceedings were pending: Ҥ 1429 requires that Saba-Bakare wait until the termination of

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the removal proceeding before either a district court or the USCIS entertains a question

regarding his naturalization application.” 507 F.3d at 340.

In adopting the reasoning of these courts, we note that nothing in the language of §

1447(b) requires the conclusion that a district court may properly naturalize an applicant

when the Attorney General is statutorily precluded under § 1429 from doing so. The option

of judicial relief under § 1447(b) arises only in response to an executive branch “failure to

make a determination” on a naturalization application within the prescribed time. See Etape

v. Chertoff, 497 F.3d at 386 (noting that intent behind § 1447(b) was “to ensure that

applicants had judicial recourse when the [executive] failed to act” (emphasis added)). A

“failure” is generally understood to reference the “omission of an expected action,

occurrence, or performance.” Black’s Law Dictionary 631 (8th ed. 2004). Plainly, an action

cannot be “expected” when it is proscribed by law.

While we refrain here from deciding the scope of “failure[s]” that would establish

jurisdiction under § 1447(b), see supra at [16 & n.6], even if jurisdiction is assumed, this

language informs the narrow circumstances under which a district court should undertake to

decide a naturalization petition itself. See 8 U.S.C. § 1447(b) (providing that courts with

jurisdiction “may either determine the matter or remand the matter” (emphasis added)).

“Judicial intervention should . . . be reserved for those rare circumstances in which CIS

unnecessarily delays the adjudication of an application . . . .” Manzoor v. Chertoff, 472 F.

Supp. 2d 801, 809 (E.D. Va. 2007) (emphasis added). As much as the statutory framework

permits district courts under § 1447(b) to evaluate naturalization petitions where USCIS

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improperly neglects to do so, it would seem to work against the framework set forth in §§

1447 and 1429 for the district court to undertake such an evaluation where Congress has

expressly prohibited the Attorney General from doing so.

Mindful that the animating principle behind § 1447(b) relief is the need to protect

against executive delay, we conclude that Congress did not contemplate judicial orders of

naturalization under circumstances where Congress has called an explicit statutory halt to the

executive’s ability to give any further consideration to an alien’s naturalization application

until removal proceedings end. Like the Sixth Circuit, we think district court authority to

grant naturalization relief while removal proceedings are pending cannot be greater than that

of the Attorney General. See Zayed v. United States, 368 F.3d at 906. To hold otherwise

would be to restart the race that Congress attempted to end between naturalization and

removal proceedings in the Internal Security Act of 1950 and various successor statutes, see

Shomberg v. United States, 348 U.S. at 544, in circumstances where that race would appear

particularly inappropriate, i.e., where information belatedly comes to the executive’s

attention indicating not only that an alien’s naturalization application may have been

improvidently granted but also that the alien should, in fact, be removed from the United

States.

In concluding that an alien cannot secure naturalization from either the district court

or the Attorney General while removal proceedings are pending, we are mindful of the

concern, voiced by district courts outside this circuit, that such a construction of § 1447(b)

might allow the executive to initiate removal proceedings to obstruct judicial consideration

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of naturalization applications. See Kestelboym v. Chertoff, 538 F. Supp. 2d 813, 818 (D.N.J.

2008) (citing Ngwana v. Att’y Gen. of the United States, 40 F. Supp. 2d 319, 321 (D. Md.

1999)). We note that Ajlani has not alleged such abuse in this case, nor does the record

support such an accusation. Of course, we need not categorically rule out the possibility of

such abuse in every case to conclude that it does not warrant a different result in this case.

Cf. Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 491 (1999) (holding

that court need not “rule out the possibility of a rare case” to resolve present controversy).

In any event, a colorable claim of such abuse is appropriately addressed on a case-by-case

basis through litigation to terminate unwarranted removal proceedings. See generally Ali v.

Mukasey, 524 F.3d 145, 147-50 (2d Cir. 2008) (discussing administrative actions to

terminate removal proceedings and observing that court’s ability to review such actions

depends on petitioner raising constitutional claims or questions of law). The possibility does

not warrant a construction of § 1447(b) that would allow district courts to grant citizenship

under circumstances where Congress has expressly prohibited the executive, charged with

primary naturalization responsibility, from even considering a naturalization application.

Accordingly, we conclude that the district court properly dismissed Ajlani’s § 1447(b)

claim for failure to state a claim on which naturalization relief could be granted while

removal proceedings were pending. To the extent Ajlani faults the district court for

dismissing his § 1447(b) claim rather than holding it in abeyance pending the conclusion of

his removal proceedings, we identify no error because we do not understand the district court

to have foreclosed the possibility of refiling if removal proceedings are resolved favorably

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to Ajlani. If Ajlani is ordered removed, the available judicial relief is that provided in 8

U.S.C. § 1252(a)(2)(D).

III. Conclusion

To summarize, we conclude:

(1) the district court lacked jurisdiction to review the propriety of the removal

proceedings pending against Ajlani; and

(2) in light of 8 U.S.C. § 1429, the pendency of those removal proceedings precludes

Ajlani from stating a claim for relief under 8 U.S.C. § 1447(b) in the form of an order either

(a) compelling defendants to admit Ajlani to United States citizenship, or (b) directly

granting his naturalization.

Accordingly, the district court’s judgment of dismissal is A FFIRMED.

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